Larocque+v.+Conheim

LAROCQUE v CONHEIM Supreme Court Special Term Oneida County February 1904

1 Abatement Death of Pabtt Subvival of Cause of Action

A cause of action for a breach of promise of marriage does not survive and pass to the personal representative of the woman nor is the complaint therefor aided by an allegation that defendant made the marriage promise fraudulently and did not Intend to keep It and that he seduced the woman and caused her to submit to a criminal operation

2 Same Seduction Action by Infant As an infant cannot maintain an action for seduction that right belonging to the person ordinarily the parent who bore the relation to her of master and she to him that of servant the right of action does not survive her death

3 Death by Wkongful Act Right of Action There can be no recovery under Code Civ Proc i 1902 for wrongful act neglect or default of the defendant by reason of which the decedent's death was caused for causing a woman to submit to a criminal operation whereby she died where the complaint does not allege that defendant bore such a relation to her as would give him an opportunity to coerce or overcome her will but alleges that she submitted to his proposals for such an operation so as to become guilty of a crime under Pen Code 295

Action by Leon Larocque administrator of Harriet Larocque deceased against Abraham Conheim Demurrer to complaint Sustained

Fred C Schraub for plaintiff HB Rutherford for defendant ROGERS J The plaintiff alleges that Harriet Larocque was his daughter that in January 1902 the defendant wrongfully seduced and carnally knew her that she was then aged 19 years and was previously chaste and of good reputation that said seduction was accomplished under a promise of marriage which the defendant did not intend to keep but the same was made for the purpose of subjecting her to his lusts and debauching her that by reason of such intercourse and cohabitation she became pregnant about the month of April 1902 that at that time the defendant wrongfully caused her to submit to a criminal operation and aided and assisted in procuring an abortion to be produced on her from the effects of which she was rendered dangerously ill and continued sick down to the 25th day of April thereafter when from the effects of said criminal operation and abortion she died that from the time of said operation down to her death the said Harriet by reason thereof suffered great pain of body and agony of mind to her loss and damage Then follows a statement that she left next of kin who suffered damage by reason of the death in the sum of $20,000 that she died intestate that letters of administration were duly issued by the surrogate of the county of Lewis to the plaintiff who has qualified and is acting as such and judgment is demanded for $20,000 To this complaint the defendant demurs upon the ground that it does not state facts sufficient to constitute a cause of action The complaint in alleging the promise of marriage a seduction thereunder and a subsequent breach of the promise states a cause of action which might have been prosecuted by her had she lived her cause of action being for the breach with the seduction as an incident which might be shown in aggravation of damages but this is not an action that survives and passes to her personal representatives Wade v Kalbfleisch 58 NY 282 17 Am Rep 250 Hegerich v Keddie 99 NY 258 1 NE 787 52 Am Rep 25 Nor is it aided by the fact that the defendant was guilty of a fraud in making and procuring and that he had no intent to keep the marriage promise Price v Price 75 NY 244 31 Am Rep 463 The portion of the complaint therefore which remains to be considered is that wherein it is charged that the defendant procured the deceased to submit to a criminal operation from the effects of which she subsequently died There was no right of action at common law for causing the death of another Green v Hudson River RR Co 2 Abb Dec 277 Whitford v Panama RR Co 2T XY 465 Lucas v NYCRR Co 21 Barb 245 The only authority in this state for its maintenance is in the statute The executor or administrator of a decedent who lins left him or her surviving a husband wife or next of kin may maintain an anion to recover damages for a wrongful act neglect or default by which the decedent's death was caused against a natural person who or a corporation which would have been liable to an action in favor of the decedent by reason thereof if death had not ensued Code Civ Proe 1902 Eliminating from the complaint the allegation as to the marriage promise does it state a wrongful act neglect or default of the defendant causing the death for which the deceased might have maintained an action if living She could not have maintained the action as for a seduction That right belongs to the person ordinarily the parent or one standing in loco parentis who bore to her the relation of master and she to him that of servant Addison on Torts Banks Ed 1094 White v Xellis 31 NY 405 88 Am Dec 282 Hamilton v Lomax 26 Barb 615 25 Am & Eng Encyc of Law 2d Ed 197 Lawyer v Fritcher 130 NY 239 29 NE 267 14 LRA 700 27 Am St Rep 521 and cases cited Disler v McCauley 66 A pp Div 42 73 NY Supp 270 Besides the seduction was not the proximate cause of death Death resulted from said criminal operation Nor could she have maintained an action for the criminal operation producing the abortion It is not alleged that the defendant bore such relation to the deceased by blood or in law as gave him special opportunity to coerce or overcome her will as was held where the seducer was guardian of tlie female and seduced his ward Graham v Wallace 50 App Div 101 63 NY Supp 372 They stood on equal ground except the disparity in years and the fact if that be an inequality that she was a woman and he a man While he solicited and was guilty of a most serious crime Pen Code 295 she gave assent participated in the unlawful act She was so persuaded as in the language of the complaint to submit In that she was herself guilty of a crime Pen Code 295 People v Meyers 5 NY Cr R 120 People v McGonegal 136 NY 62 32 NE 616 This jt seems to me would have precluded her from maintaining an action for the criminal operation within the principle that courts will not grant relief to one who bases his claim upon his own illegal act or a transaction in which he was an unlawful participant The authorities are many and uniform He who by his pleadings in any court of justice avows that he has been engaged with others in an unlawful action or has concerted with theui in an unlawful enterprise and that in arranging for or carrying it out he has been unfairly treated by his associates or has suffered an injustice which they should redress will be met by the refusal of the court to look any further than his complaint which it will at once order dismissed Coolcy Torts 149 Since the business of courts is to enforce obedience to the law they cannot lawfully assist a suitor in any effort to break it Bishop Noncont Law 54 In just legnl principle the true view is believed to be that where one is seeking the help of the court in doing a wrongful act or compensation for having done one or redress for another's having participated in it or when in any other manner compliance with his prayer would involve an affirmance of his wrong as though it were a right his suit will be rejected For should the court grant what he asks it would thereby in effect join with him in breaking the law which it was established to maintain Id 59 A party cannot be heard to allege his own unlawful act and if such an act be one of a series of facts necessary to support the plaintiff's claim then that claim must fail A party who seeks redress in a court of justice must come with clean hands An action which requires for its support the aid of an illegal act cannot be maintained Gregg v Wyman 4 Cush 322 It is a maxim of the law that that to which a person assents is not esteemed in law an injury Broom Leg Max 20i To the same effect is Addison Torts Banks Ed 1093 Bartlev v Richtmver 4 XY 38 43 53 Am Dec 338 Hilton v Fonda 86 NY 339 352 Travis v Barger 24 Barb 614 The conclusion results that the plaintiff as administrator has no cause of action for the matters set out in the complaint Whether in his individual capacity as father ie master he has a right of acrion for loss of services with punitive damages Lawyer v Fritcher 130 XY 239 29 NE 267 14 LRA 700 27 Am St Rep 521 is not now before the court for decision The demurrer must be sustained with costs Demurrer sustained with costs